[2024] KEHC 15942 (KLR)

Kanyi v Makau & 4 others (Miscellaneous Application E587 of 2024) [2024] KEHC 15942 (KLR) (Civ) (19 December 2024) (Ruling)

Neutral citation: [2024] KEHC 15942 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E587 of 2024

LP Kassan, J

December 19, 2024

Between

Alice Wambui Kanyi

Applicant

and

Stephen Musembi Makau

1st Respondent

Lucy Wangui Wanyoike

2nd Respondent

David Njuguna Waweru

3rd Respondent

Zen Trading Company

4th Respondent

Daniel M Njogu

5th Respondent

Ruling

1. This is an Application for stay of execution pending appeal and to Appeal out of time. I have read the relevant documents and to dispose of this Application, I shall make the following notes;1. The right to Appeal.This is a Constitutional right as informed by hierarchy of Courts. Any party can Appeal against any decision in as much as that right is given by Law. It is in rare instances where such right can be denied. These instances are not limited to circumstances where there is inordinate delay, abuse of Court process, meting out injustice and so on and so forth. At this juncture, this Court is being called upon to decide whether the Applicant has a right of Appeal which I find existing.2. Circumstances at Lower Court Case;It is noteworthy that the Appellant herein did not participate in the Lower Court leading to a Judgement in default. An appeal against a default Judgement carries some more weight to be admitted to an Appellate Court than other Judgements where parties participated in a full trial. This is because the right to be heard, though by own mistake, did not exist at the lower Court and so since justice need not only be done, but must be seen to be done. What would happen in this case if this Court denies the right of an Appeal challenging a default Judgement? To me, the affected litigant would feel very aggrieved andfor justice to be done, such litigant should have a chance of Appeal whether it will be dismissed or not.3. Delay in filing Appeal on time.Several Courts have given several opinions on what amounts to " inordinate" delay. Various factors play a major role before the Court can decide the meaning of inordinate delay. In this case, the delay was for around 53 days and now this Court must decide if this delay is "inordinate". The delay is pegged on a mistake by the Applicant's Advocate who was mistaken on the requirements before filing this Appeal. To me this delay is not inordinate and it is unfortunate that the Applicants Advocate did not follow the laid down procedures for filing Appeal. Nevertheless, his client should not suffer for his mistakes.4. Prayers soughtto succeed or not.default judgment because otherwise that would be tantamount to determining the Appeal itself and not this Application. In fact at the time of writing this ruling, no record of Appeal had been filed and so it would be impossible to determine if the Appeal has a chanceThe Applicant is seeking leave to Appeal out of time and stay pending Appeal- It is not about setting aside the default Judgment and so I will not belabor much on

2. DeterminationThe upshot of the above is that prayers 3 and 4 of the Notice of Motion dated 13th June 2024 are allowed on Condition (for prayer 4) that the Applicant deposits the decretal amount in a joint interest earning account in the name of both advocates within 30 days from today failure to which, execution to issue. The Applicant shall bear the costs of this Application for occasioning the delay in filing Appeal on time.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 19TH DAY OF DECEMBER 2024. L. KASSANJUDGEIn the presence of:Muigai holding brief Wangui for the ApplicantNo appearance for RespondentCarol - Court AssistantCOURTInterim orders extended to 21/2/2025L. KASSANJUDGE